Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2008-UP-084 - First Bank v. Wright

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

First Bank, F/K/A Carolina Community Bank, N.A, Respondent,

v.

Luevenia S. Wright, Personal Representative for the Estate of Yvonne Chyrelle K. McRae; Carolina Funeral Home; Luevenia S. Right, Personal Representative for the Estate of Roger E. McRae; Clarence McRae; Leroy Sheldon Rowell; and County of Dillon, Defendants,

of whom Luevenia S. Wright, Personal Representative for the Estate of Yvonne Chyrelle K. McRae, is Appellant.


Appeal From Dillon County
A.C. Michael Stephens, Special Referee


Unpublished Opinion No.  2008-UP-084
Heard January 8, 2008 -  Filed February 8, 2008


AFFIRMED


Glenn B. Manning, of Dillon, for Appellant.

A. LaFon LeGette, Jr., of Latta, for Respondent.

PER CURIAM:  Luevenia S. Wright, as Personal Representative for the Estate of Yvonne Chyrelle K. McRae, has appealed in this matter involving foreclosure of a real estate mortgage on property formerly owned by Yvonne McRae.  We affirm. 

In his motion to the special referee to set aside the foreclosure and sale, Roger McRae, who was then Yvonne McRae’s surviving spouse and the Personal Representative of her estate, asserted in relevant part as follows:

3.  That First Bank of Dillon brought the above action against Yvonne Chyrelle McRae (only later changed the caption of the case to reflect the Personal Representative of her estate as defendant, since she had died in May 2004.), which is a foreclosure on her property situated at the corner of Calhoun Street and Highway 57 South in Dillon.

4.  That in August 2003, Yvonne C. McRae, had disputed, in a letter to the officials at First Bank, the validity of said mortgage . . . and she was in the process of filing suit against the Bank for release of said mortgage just before she died.

5.  That Roger McRae, the Personal Representative for the Estate of Yvonne C. McRae, was hospitalized . . . on March 22, 2005, the date of the foreclosure hearing . . . and was not able to appear and present his defense against the claims of the Plaintiff, which resulted in the issuance of an order for sale by default judgment.

6. That Roger E. McRae, the Personal Representative for the Estate of Yvonne C. McRae, was not served a notice of sale of the property ordered foreclosed, as is required by South Carolina law; and no certification of service is filed in the Court of Common Pleas. 

The special referee denied the motion to set aside the foreclosure and sale on the basis it was untimely made.    

In the Statement of Issues on Appeal, Wright now asserts the following four issues:  (1) “the appellant [i.e., Roger E. McRae, as the Personal Representative for the Estate of Yvonne Chyrelle K. McRae] and heirs at law were not enjoined as defendants pursuant to state law for the lower court to issue an order of foreclosure on real property under his jurisdiction”; (2) “the Special Referee acted with prejudice in enjoining the appellant as defendant at a hearing of default and ordering a foreclosure sale”; (3) “there was no transcript of record for the default hearing made, preserved, or filed in the office of the clerk of court”; and (4) “there was no certificate of service of the Order or Judgment from the default hearing and no notice of judgment from the lower court, and thus [this] prejudiced the subsequent rights of the appellant in the foreclosure proceedings.” 

The only issues that were arguably raised below relate to the amendment of the pleadings and the service of the foreclosure order.  However, we find no error in the special referee’s determination that the motion to set aside was untimely made.  Moreover, as to the amendment of the pleadings to add the Personal Representative for the Estate of Yvonne Chyrelle K. McRae as a party, we note it is not necessary to make the personal representative of a deceased mortgagor a party to an action of foreclosure.  See S.C. Code Ann. § 29-3-610 (2007) (“It shall not be necessary to make the personal representative of a deceased mortgagor a party to any foreclosure proceeding and no sale heretofore made under foreclosure proceedings to which the personal representative of a deceased mortgagor was not a party shall be invalid by reason of the absence of such personal representative.”). 

As to the lack of a transcript, this was never raised to and ruled upon by the special referee.  Accordingly, it is not preserved for our consideration.  See Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006) (“It is well settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved.”); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”); Gurganious v. City of Beaufort, 317 S.C. 481, 488, 454 S.E.2d 912, 916 (Ct. App. 1995) (stating “a contemporaneous objection to a disputed ruling is required to preserve an issue for appellate review”).  Accordingly, the decision of the special referee is

AFFIRMED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.